ERICK TUKES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of motion to correct illegal sentence for third-degree felony cocaine possession, holding trial court must attach record evidence supporting its denial rather than summarily dismissing the claim.
A trial court must attach portions of the record conclusively refuting a legally sufficient Rule 3.800(a) claim of illegal sentence rather than summarily denying it without evidentiary support.
[1] Trial court must attach portions of record conclusively refuting legally sufficient Rule 3.800(a) claim of illegal sentence or conduct evidentiary hearing rather than sum…
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Join FLexlaw to unlock all legal intelligence“the trial court must attach portions of the record conclusively refuting a legally sufficient 3.800(a) claim”
Court citing Johnson v. State for the requirement that trial courts provide record evidence when summarily denying sentencing correction motions.
Erick Tukes was sentenced for possession of cocaine, a third-degree felony, and filed a motion to correct illegal sentence raising claims of denial of…
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PER CURIAM.
Erick Tukes appeals the denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Tukes raised two claims in his motion: (1) denial of post-sentencing jail credit and (2) illegal sentencing in excess of the statutory maximum for a third degree felony (possession of cocaine). We affirm the summary denial of the first claim for the reasons set forth in the State’s response, but reverse the trial court’s summary denial of the second claim for failure of the court to attach record evidence to support its summary denial. See Fenelon v. State, 932 So. 2d 431 (Fla. 4th DCA 2006); Johnson v. State, 665 So. 2d 380 (Fla. 4th DCA 1996) (“holding that the trial court must attach portions of the record conclusively refuting a legally sufficient 3.800(a) claim”). We deny the State’s motion to relinquish jurisdiction for the trial court to attach a copy of the Criminal Punishment Code scoresheet to an amended order, pursuant to the “new policy” announced by the second district in Harvester v. State, 817 So. 2d 1048, 1049 (Fla. 2d DCA 2002).
Accordingly, we reverse and remand for attachment of portions of the record refuting appellant’s second claim of an illegal sentence, if such records exist or an evidentiary hearing.
STEVENSON, C.J., FARMER and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Harvester v. State, 817 So. 2d 1048 (Fla. 2d DCA 2002)
- Fenelon v. State, 932 So. 2d 431 (Fla. 4th DCA 2006)
- Cuevas v. Cuevas, 665 So. 2d 380 (Fla. 3d DCA 1996)
- Jacobo Jesus Chigin v. State, 665 So. 2d 380 (Fla. 3d DCA 1996)